CYIL vol. 11 (2020)

MICHAL PETR CYIL 11 (2020) The second question concerning attribution of liability for anticompetitive conduct to an undertaking concerns the form of liability, i.e. whether the liability presupposes fault (intentional or negligent) or whether the liability is objective. EU competition law is not clear on that – the Treaty provisions defining anticompetitive agreements and abuse of dominance (Article 101 and 102 of the TFEU) do not mention the liability, the “procedural” Regulation 1/2003 43 however states that the Commission may impose fines for these offences if the undertakings acted intentionally or negligently . 44 Advocate General Kokott interpreted this unequivocally in her opinion in case Schenker . Because, similarly to criminal law, the EU competition law is based on the nulla poena sine culpa principle, fault has to be required: According to the principle of nulla poena sine culpa, an undertaking may be held responsible for a cartel offence which it has committed on a purely objective basis only where that offence can also be attributed to it subjectively. If, on the other hand, the undertaking commits an error of law precluding liability, an infringement cannot be found against it nor can it form the basis for the imposition of penalties such as fines. 45 According to her opinion, this interpretation was to be employed not only when EU competition law is applied by the Commission, but also by the national competition authorities (NCA). 46 The CJ EU did not share this view; even though it did not address the question of culpability at the EU level, it concluded that if the EU competition law is applied by the NCAs, they need not establish fault. 47 Thus, arguably, even though fault is required to establish an infringement of competition law when the Commission is conducting the proceedings, it is not the case when the decision is to be taken by a NCA. 48 2. Pricing Algorithms and Anticompetitive Agreements The fact that a coordinated increase of prices may be facilitated or even induced by pricing algorithms is not disputed. The typology of possible scenarios under which this may happen 43 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4 January 2003, p. 1. 44 Regulation 1/2003, Article 23(2). 45 Opinion of AG Kokott of 28 February 2013 in case C-671/11 Schenker , par 44. 46 Ibid , par. 43. 47 CJ EU judgement of 18 June 2013 C-681/11 Schenker , ECLI:EU:C:2020:157, par. 35 and 36: “ Article 5 of Regulation No 1/2003 defines the powers of the competition authorities of the Member States for the purpose of applying Articles 101 TFEU and 102 TFEU and provides that those authorities may, in particular, impose fines, periodic penalty payments or any other penalty provided for in their national law. It is not apparent from the wording of Article 5 of the regulation that conditions relating to intention or negligence have to be met in order for the measures of application which are provided for by the regulation to be adopted. However, if, in the general interest of uniform application of Articles 101 TFEU and 102 TFEU in the European Union, the Member States establish conditions relating to intention or negligence in the context of application of Article 5 of Regulation No 1/2003, those conditions should be at least as stringent as the condition laid down in Article 23 of Regulation No 1/2003 so as not to jeopardise the effectiveness of European Union law” . 48 It may however also be argued that fault tis required only in order to impose a penalty by the Commission, not to find an infringement. For a detailed discussion, see MIKULÍK, M. Zavinění jako předpoklad deliktní odpovědnosti podle českého a unijního soutěžního práva? [Fault as a precondition tortious liability under Czech and EU competition law?] Právní rozhledy , 2018 (23-24), p. 801.

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